Haveaux v Randwick City Council

The site and its context

1. The site is located at 19, 21-21A and 23-23A Mulwarree Avenue, Randwick and is legally described as Lots 2, 3 and 4 in DP 11916.
2. The combined site is regular in shape. It has a frontage to Mulwarree Avenue of 32.925m, and a site depth of 38.125m. The site has a total area of 1,254.9sqm and rises by approximately 3m from the street frontage towards its rear boundary.
3. Mulwarree Avenue has a distinctive urban character derived from a combination of its relatively narrow width (being approximately 10m) and a continuous row of mature fig trees, which are planted beyond the western boundary of the street.
4. North of the subject site, on the eastern side of the street at numbers 15 and 17 Mulwarree Avenue, are two single-storey detached dwellings. Further north, the urban character on the eastern side of Mulwarree Avenue is reasonably consistent, comprising a number of two- and three-storey residential apartment buildings.
5. On the western side of Mulwarree Avenue, forming the majority of the street frontage, is a series of three-storey student accommodation buildings with a consistent architectural language, which are set back from the street frontage by approximately 10m to accommodate the colonnade planting of fig trees.
6. The rear of the subject site abuts the rear of two four-storey residential apartment buildings at 18 and 20 Prince Street. Elsewhere in the immediate vicinity, Prince Street has a reasonably consistent urban character comprising residential apartment buildings of two-, three- and four-stories.
7. South of the site are two residential apartment buildings, which each have a rear boundary that abuts the subject site's southern side boundary. These neighbouring properties, at 5 Cowper Street and 25 Mulwarree Avenue are two- and three-stories in height respectively, and include individual dwellings which are oriented to the north across the common boundary with the subject site.

The planning controls

1. The site is zoned R3 Medium Density Residential pursuant to the Randwick Local Environmental Plan 2012 (RLEP). Development for the purposes of boarding houses is permissible with consent within the R3 zone.
2. Further relevant planning controls are as follows: 1. The EPA Act. 2. The Environmental Planning and Assessment Regulation 2000 (EPA Reg). 3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). 4. State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55). 5. State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 6. RLEP. 7. Randwick Comprehensive Development Control Plan 2013 (RDCP).

History of the Development Application

1. The Respondent's Amended Statement of Facts and Contentions, dated 20 October 2021 (and forming Exhibit 2 in these proceedings), sets out the history of the Application. A concise summary follows.
2. The Application was lodged with the Respondent on 23 April 2021.
3. The Application was publicly notified from 6 May to 20 May 2021.
4. The Respondent received 15 submissions in response to the public notification, citing a range of planning issues and objecting to the proposal. The Respondent's Exhibit 1 includes copies of each of these submissions at pp 13-54.
5. On 1 July 2021, the Applicant filed a Class 1 appeal against the deemed refusal of the Application.
6. On 23 August 2021, the matter was listed for a conciliation conference under s34 of the Land and Environment Court Act 1979 (LEC Act). With the parties unable to resolve the contentions, the conciliation conference was terminated.

The issues

1. The contentions pressed by the Respondent can be found in the Amended Statement of Facts and Contentions forming Exhibit 2 in these proceedings.
2. These contentions are summarised as follows: 1. Exceedance of the maximum FSR development standard as determined by cl 4.4 of the RLEP and SEPP ARH. 2. Exceedance of the maximum height of building development standard as set out at cl 4.3 of the RLEP, and the maximum external wall height controls set out in Parts 4.3 and 4.4 of the RDCP. 3. The Application's failure to demonstrate whether adequate essential services (specifically sewerage services) are available to the site as required by cl 6.10 of the RLEP. 4. Inconsistency with the character of the local area pursuant to cl 30A of SEPP ARH and the objectives of the R3 Medium Density Residential zone as set out in the RLEP. 5. Unacceptable impacts upon the amenity of neighbouring properties (given overshadowing, building separation, potential cross viewing, and reliance on a Plan of Management to mitigate against noise impacts), and unsatisfactory amenity for future occupants (given constrained solar access, limited common room area, potential noise impacts and lack of visual privacy). 6. The Application does not provide appropriate visual and acoustic privacy to adjoining properties given the reliance on a Plan of Management to mitigate against noise impacts, and as a consequence of the building separation to existing dwellings at 18 Prince Street. 7. Insufficient information to assess various aspects of the Application including details of landscape maintenance, egress paths, the utility of the clothes drying area, the remediation of contamination and shortcomings identified with the Plan of Management.

The evidence

1. The Court was assisted by experts in planning who conferred to prepare a joint report. The experts are Mr Gerard Turrisi (planner) for the Respondent, and Mr Lee Kosnetter (planner) for the Applicant. Their joint expert report forms Exhibit 3 in these proceedings and addresses the earlier amended plans (being the Revision D architectural drawings forming Exhibit A).
2. At pp 3-5 of the joint report, the experts set out their agreement that Contention 1, dealing with FSR, has been satisfactorily resolved by the Revision D plans.
3. In summary, the experts agree that reductions to the building scale and bulk evident in the Revision D plans reduce the total proposed gross floor area to within the maximum permissible FSR applicable to the site.
4. Similarly, at pp 6-9 of the joint report, the experts set out their agreement that Contention 2, dealing with building height, has been satisfactorily resolved by the amended plans.
5. Key to the experts' agreement on this issue is Mr Turrisi's acknowledgement of the adequacy of the Applicant's cl 4.6 written request which seeks to justify the exceedance of the height of building development standard as set out at cl 4.3 of the RLEP.
6. At p 9 of the joint report, Mr Turrisi states relevantly: "The proposal breaches the maximum height control of 12 metres, by 0.445m and equates to the lift overrun. It is accepted that the lift overrun is located to the centre of the site and would not generally be read from the public domain. The breach does not create any environmental impacts to adjoining properties and therefore the cl 4.6 variation is acceptable noting that there is a fall of the land from the rear to the street."
7. And finally, at pp 12-15 of the joint report, the experts set out their agreement that Contention 4, dealing with the character of the local area, has been satisfactorily resolved by the amended plans, or is capable of resolution by condition of consent.
8. This leaves Contentions 3, 5, 6 and 7 unresolved between the experts and consequently these remain pressed by the Respondent.
9. The experts commenced oral evidence with reference to Contention 3, dealing with essential services. Mr Turrisi set out his view that given reported issues with the reliability of the existing sewer service along Mulwarree Avenue, the Applicant had not yet provided sufficient evidence to satisfy the requirements of cl 6.10 - Essential services - of the RLEP.
10. Mr Turrisi further explained that the planning experts disagree on the appropriate basis on which to resolve this contention, with Mr Kosnetter taking the view that availability of the sewer is not in question, and that its reliability is able to be improved by upgrade if necessary.
11. At p 11 of the joint report, Mr Kosnetter states: "The extent of upgrade to the Sydney Water asset, where required to service the development will be detailed as part of a subsequent Section 73 Certificate application to Sydney Water, as is standard practice via a prescribed condition of consent."
12. Turning to Contention 5, and dealing with the question of amenity able to be derived from within the proposal, Mr Turrisi set out his view that the common room provided on the ground floor of the proposal is under-sized given the anticipated resident population, and receives inadequate solar access resulting in an unacceptable level of amenity.
13. Mr Turrisi noted that in its current proposed form (Revision D), the common room is sensibly located adjacent to proposed communal open space (in the north east corner of the site). However the common room is constrained in the amount of solar access it receives due to existing overshadowing created by adjacent buildings.
14. Mr Turrisi noted that SEPP ARH calls for a minimum of three hours of direct solar access between 9am and 3pm during mid-winter and that the proposal fails to achieve this level of solar access.
15. In the joint report, Mr Kosnetter sets out his view that although falling short of achieving three hours between 9am and 3pm at mid-winter, the proposal exceeds an alternative target established by the RDCP, which calls for three hours of solar access between 8am and 4pm during mid-winter.
16. At p 17 of the joint report, Mr Kosnetter states that the common room will: "…achieve 4 hours of sunlight between 8am and 4pm as per the RDCP provisions. This alternative of providing solar access outside the ARH SEPP timing of 9am-3pm (where 3 hours is required) is not fatal to the amenity of the common room, which benefits from both morning and afternoon sunlight and connectivity at ground level to the common outdoor space."
17. In further oral evidence, Mr Turrisi's suggested that the proposal could have included a second common room - potentially at the upper levels - which would result in a combination of common spaces for lodgers, one with direct access to open space at ground level, and a second with good solar access at an upper level.
18. Mr Turrisi next addressed the proposed scale of the common room, concerned that it was under-sized for the anticipated numbers of lodgers.
19. Mr Turrisi noted the Revision D plans indicate a common room of approximately 67sqm in area, whilst the relevant provisions of the RDCP, call for 1.2sqm per resident, which would result in a common room of approximately 125sqm in area.
20. Mr Turrisi then set out his view that the proposed common room should be expanded to displace current boarding rooms 10 and 11, thereby achieving a more appropriately-sized common room that meets the numeric control established by the RDCP.
21. Mr Turrisi then gave his view that a series of landscape design amendments would improve the proposal. This includes reconfiguring the private landscaped open space adjacent to boarding rooms 4, 5 and 6 - addressing Mulwarree Avenue - as common open space able to contribute to the landscape character of the street.
22. Similarly, Mr Turrisi noted that the proposed egress path running along the site's southern boundary could be reconfigured to improve the landscape benefits of deep soil in this location.
23. Finally, Mr Turrisi noted that the landscape design drawings (Exhibit J in these proceedings) were not yet fully coordinated with the Revision D architectural plans.
24. Turning next to Contention 6 and the question of acoustic privacy arising from the size and configuration of the proposed common open space, Mr Turrisi gave oral evidence noting the common open space comprises both an area adjacent to the barbecue facilities and an area allocated to clothes drying adjacent to the proposed laundry.
25. In this configuration, Mr Turrisi estimates the maximum capacity of the common open space to be approximately 30 persons. He then noted that the Applicant's acoustic report (Exhibit P in these proceedings) identifies potential acoustic privacy impacts arising from excessive congregation, which it recommends be mitigated by limiting outdoor congregation between 7pm and 10pm to a maximum of 20 persons.
26. Mr Turrisi then noted the Applicant's Plan of Management (Exhibit R) would need to be augmented to include viable measures to constrain outdoor congregation to meet the recommendation of the acoustic report, further noting that reduced capacity of the outdoor common space would place greater pressure on the amenity available within the common room.
27. Mr Kosnetter provided oral evidence to confirm that the Plan of Management includes a series of appropriate measures to maintain acceptable acoustic privacy, and further explained that: 1. The Plan of Management forms a part of the tenancy agreement for prospective lodgers. 2. Failure to adhere to the "house rules" potentially results in eviction for lodgers. 3. The maximum capacity and hours of operation for the common open space would be communicated using appropriate signage. 4. A boarding house manager would be resident on site to further apply and enforce the "house rules".
28. Under cross examination, Mr Kosnetter stated that he expected the Plan of Management would be largely "self-regulated" and that the boarding house manager would intervene in any scenario where the capacity of the common open space exceeded the recommended limit of 20 persons.
29. Turning to questions of visual privacy, Mr Turrisi noted that a number of the proposed boarding rooms at levels two and three include private balconies that address the rear of an existing apartment building at 18 Prince Street. In the proposed configuration the resultant building separation is approximately 8.6m from balcony line to balcony line.
30. At pp 20-21 of their joint report, the experts discuss alternative treatments to resolve the resultant visual privacy impacts. Mr Turrisi suggests the removal of the balconies to increase building separation. Mr Kosnetter suggests retention of the balconies and appropriate screening to achieve visual privacy.
31. Mr Turrisi provided oral evidence stating that he felt the Revision D plans were an improvement, largely resolving visual privacy impacts, but that he would prefer the omission of the balcony and the introduction of a raised planter box in the same location to achieve improved privacy.
32. At this point, the hearing was adjourned for the conclusion of the day. Upon resumption on the morning of 23 November 2021, the Applicant sought leave from the Court to further amend the Application.
33. The Respondent did not oppose these further amendments and consequently I granted leave. The Applicant tendered the further amended Revision E architectural drawings as Exhibit Y (and as noted earlier, these plans form the subject of the appeal) and an amended Plan of Management as Exhibit X.
34. In short summary, the overnight amendments to the architectural drawings include the expansion of the proposed common room to engulf the original boarding room 11, some reconfiguration of the common open space and its interface with ground floor boarding rooms, confirmation of the proposed balcony configuration at levels two and three, and other detailed landscape design refinements at the perimeter of the proposed building.
35. Similarly, the overnight amendments to the Plan of Management include the provision of greater details to describe measures and protocols to limit congregation in the common open space to 20 persons.
36. Continuing in his oral evidence, Mr Turrisi stated that the final amended Application (Revision E) generally resolves his concerns in relation to landscape design, but - in his view - a series of three fundamental concerns remain: 1. Although the common room has increased in size, its amenity remains constrained because it does not receive three hours of solar access between 9am and 3pm at mid-winter as called for within SEPP ARH. 2. Although the common room has increased in size - from approximately 67sqm to 93sqm - it does not meet the area target established by the RDCP. 3. The amendments to the common open space - although improving its configuration and utility - has increased its total area, prompting concern it will accommodate more that the recommended maximum number of 20 persons.
37. Additionally, Mr Turrisi noted his preferred privacy treatment for the level two and three boarding rooms remains as raised planter boxes rather than the retention of balconies with raised planter boxes as proposed in the final amended Application.
38. Mr Turrisi also noted his view that the amended Plan of Management remains deficient in its control measures to limit congregation in the common open space to 20 persons.

Findings

1. I have determined to uphold the appeal and grant consent to the DA as amended, subject to conditions. In deciding this course, I set out my reasons in the following paragraphs.
2. Acknowledging that the experts agree Contentions 1, 2 and 4 have been resolved, it is helpful now to group the remaining live contentions in this matter into a series of key design and planning issues: 1. Whether the Applicant has demonstrated there are adequate sewerage services available to the site as required by cl 6.10 of the RLEP. 2. Merit issues relating to the size and configuration of the proposed common room and its resultant amenity. 3. Merit issues relating to the extent of solar access received by the proposed common room and its resultant amenity. 4. Whether the amended Application and amended Plan of Management work together to adequately mitigate against acoustic privacy impacts. 5. Merit issues relating to the detailed design treatment of a number of boarding rooms at levels two and three necessary to resolve visual privacy impacts experienced at 18 Prince Street. 6. Whether there is insufficient information to assess the Application, including the remediation of contamination and further shortcomings identified with the Plan of Management.

Essential services

1. The key to resolving the first of these remaining issues, lies in interpreting the detailed provision set out within cl 6.10 of the RLEP. Relevantly, this clause states: "Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required - … (c) the disposal and management of sewage, …"
2. In closing submissions, counsel for the Applicant drew a distinction between the "availability" of the sewer service and its "reliability", "performance" or "adequacy".
3. The Court was presented with evidence that there is a regular issue with the existing sewer service becoming blocked by trees roots, likely the colonnade of fig trees existing on the western side of the Mulwarree Avenue.
4. It is agreed between the parties that a 150mm sewer asset, owned by Sydney Water, exists in Mulwarree Avenue and is available to the site.
5. In such an instance, the Applicant submits that standard development practice would make any necessary upgrade of the existing sewer a matter for Sydney Water though the compliance certificate process set out at s 73 of the Sydney Water Act 1994. A standard condition of consent to this effect is included within the agreed draft conditions of consent.
6. Counsel for the Respondent submits that no precedent exists with the Court for a scenario where the existing sewer is "broken" (although the Applicant has directed the Court to a number of authorities that deal with issues of essential services more generally).
7. The Respondent submits that given the regular blockage of the sewer, more is needed than a condition of consent or s 73 certificate.
8. Elaborating on this point, the Respondent submits that the statutory construction of the phrase "disposal and management of sewage" within cl 6.10 of the RLEP raises a qualitative dimension to the consent authority's considerations going beyond connection to an existing sewer service alone.
9. It was submitted that a condition of consent for a future s 73 certificate does not "manage" existing sewer problems.
10. On this question, ultimately I accept the Applicant's submissions and am satisfied that a suitable sewer service is available at the site meeting the requirements of cl 6.10 of the RLEP, and that the imposition of a condition of consent is the appropriate course in this instance.
11. The condition of consent agreed between the parties obliges the Applicant to obtain a s 73 certificate from Sydney Water prior to any occupation of the development after construction.
12. I also note that any question of maintenance of the existing sewer service necessary to resolve regular blockages remains open, and is of obvious concern and inconvenience to local residents, but this question falls beyond the scope of these particular proceedings and remains a concern regardless of the subject proposal being granted consent or not.
13. I am satisfied this resolves Contention 3.

Amenity

1. Turning next to Contention 5 regarding amenity, and commencing with the question of the size and configuration of the proposed common room and its resultant amenity, the Court was directed to relevant provisions within SEPP ARH and Part C4 the RDCP dealing with boarding houses. Of particular note are the following: 1. At cl 30(1)(a) SEPP ARH makes clear the consent authority must be satisfied that a boarding house of five or more boarding rooms is provided with at least one communal living room. 2. At Part C4 of the RDCP, Control 2.3 calls for indoor communal living areas to have a minimum dimension of 3m and a minimum total area of 20sqm or be provided at a rate of 1.2sqm per resident, whichever is the greater.
2. Along with providing this numeric control for the common room, Part C4 of the RDCP also includes corresponding objectives, which in this case include ensuring communal spaces are "appropriately sized, located and equipped with suitable facilities", and to "protect the acoustic and visual privacy and living amenity for both boarding house residents and neighbours".
3. In closing submissions, counsel for the Applicant noted that the SEPP does not establish any minimum area for the common room and the proposal therefore meets the SEPP's requirement.
4. Further, the Applicant submits that the RDCP is able to be applied flexibly in the achievement of its objectives, such that the common room - at 93sqm in area and meeting the RDCP objectives - is of an adequate size.
5. In support of this submission, the Applicant notes that the final amended proposal for the common room: 1. Exceeds the 3m minimum dimension called for in the RDCP. 2. Is capable of notionally accommodating 77 people (applying the 1.2sqm per resident rate to the proposed 93sqm common room), which is a significant proportion of the total maximum population of 100 people. 3. The adjacent common open space is able to accommodate up to 20 people in addition to the notional 77 person capacity of the common room. 4. The 50 boarding rooms included within the proposal are each self-contained double rooms, 41 of which are configured with private balconies, reducing likely demand for the common room.
6. In reply, counsel for the Respondent submits that the common room should be larger and better oriented. Referring to Part C4 of the RDCP, Control 2.3 also includes a provision calling for a common room to be orientated "…to maximise solar access and have a northerly aspect where possible."
7. The Respondent further submits that a superior design would have been configured to reflect both controls and the final amended Application meets neither the area nor orientation and solar access targets established by the RDCP, and that the Applicant has not provided adequate reasons for not meeting these targets.
8. The parties directed the Court to an authority relevant to this question. In Williamson v Northern Beaches Council [2020] NSWLEC 1110 (Williamson), Horton C made a series of findings relevant to the question of the use and capacity of common rooms and common open spaces.
9. The Applicant submits the relevance of [62] of Williamson, where Horton C states: "However, I also accept that the occasions on which all occupants of the boarding house are in the Communal Open Space may be rare, and the use of the communal space does not, of itself, presume offensive noise or nuisance will be the result. Just as the Court consistently expects conditions of consent will be complied with, I start with the expectation that the House Rules, and other provisions of the Plan of Management, will be followed by the occupants."
10. However, the Respondent points out that at [60] and [61] Horton C also relevantly states: "The Applicant submits that it should not be assumed that the boarding house will be fully occupied, and so the number of residents who may use the communal room or communal open space is likely to be less than the 49 persons limited by the Plan of Management. Plainly, in my view, it is a safe assumption for the Court to make that the interests of the owner of the boarding house lie in it being fully occupied and no steps would be taken to prevent such an outcome. Furthermore, a well-used communal room or outdoor communal space is, presumably, a sign of a healthy and socially connected resident community that every boarding house would wish upon itself."
11. Next, turning to the question of the extent of solar access received by the proposed common room and its resultant amenity, the Court was again directed to relevant provisions within SEPP ARH. Of particular note are the following: 1. At cl 29(2)(c) SEPP ARH sets out the following solar access standard that must not be used to refuse the application "where the development provides for one or more communal living rooms, if at least one of those rooms receives a minimum of 3 hours direct sunlight between 9am and 3pm in mid-winter". 2. At cl 29(2)(d) SEPP ARH sets out the following private open space standard that must not be used to refuse the application "if at least the following private open space areas are provided (other than the front setback area) - 1. one area of at least 20 square metres with a minimum dimension of 3 metres is provided for the use of the lodgers, 2. if accommodation is provided on site for a boarding house manager - one area of at least 8 square metres with a minimum dimension of 2.5 metres is provided adjacent to that accommodation".
12. It is common ground between the parties that the final amended proposal meets the standard set out at cl 29(2)(d) but not that at cl 29(2)(c).
13. The Applicant submits that because this clause of SEPP ARH does not establish a development standard that must be adhered to, and rather because it adopts the form of a "must not refuse" provision, it offers scope for the Application to not provide three hours of solar access between 9am and 3pm during mid-winter.
14. Further, the Applicant submits that the implied objectives of cl 20(2)(c) and (d), which deal with communal amenity, work together and collectively are met by the Application.
15. The Applicant also submits that by applying a relevant alternative test for solar access in medium density residential development, the proposal demonstrates an acceptable level of amenity. The alternative test is set out at Control 5.1(i) of Part C2 of the RDCP, which states: "Dwellings within the development site must receive a minimum of 3 hours sunlight in living areas and to at least 50% of the private open space between 8am and 4pm on 21 June (mid winter)."
16. The Court has been presented with evidence demonstrating that the common room in the Revision E plans receives more than the minimum of three hours called for in this control of the RDCP, and it is generally agreed between the parties that by this measure the common room receives approximately four hours of solar access between 8am and 4pm.
17. However, the Respondent submits the common room should be "larger and sunnier" than currently proposed, and that the intent of SEPP ARH cl 29(2)(c) has not yet been met.
18. Ultimately, I find that the proposed common room is of an adequate size and configuration, and receives adequate solar access, necessary to provide acceptable amenity to future residents. In forming this view I accept Mr Turrisi's oral evidence that the common room is sensibly located adjacent to the proposed communal open space (in the north east corner of the site).
19. This strikes me as an entirely appropriate site planning response and the relationship of the common room to the adjacent communal open space and its proximity to the laundry and barbecue facilities lend the proposal an amenable social focus.
20. I am satisfied this resolves Contention 5 (apart from issues of visual privacy arising from building separation, which are also addressed within Contention 6).

Visual and acoustic privacy

1. Turning to Contention 6, counsel for the Applicant submits that acoustic impacts are appropriately resolved by a number of measures including the introduction of acoustic and privacy screens at the perimeter of the proposed common open space, and by limiting congregation within the common open space to a maximum of 20 persons.
2. The Applicant submits that the question of enforcement of the 20 person limit is adequately addressed by the amended Plan of Management.
3. Further, the Applicant says that in the matter of Williamson, the Court accepted that "house rules" will be followed and that some level of self-regulation should be assumed.
4. Additionally, the presence of a dedicated boarding house manager on-site (including processes to identify a substitute manager in the event of absence) and the form of agreed conditions of consent addressing environmental amenity are adequate to resolve contentions for acoustic privacy.
5. In reply, the Respondent submits that the final amended proposal fails to meet Control 2.6(vi) of Part C4 of the RDCP, dealing with visual and acoustic privacy which states: "Locate communal open space, balconies and windows to bedrooms or communal areas, to minimise overlooking, privacy and acoustic impacts on adjoining properties,"
6. Further, the Respondent submits that Williamson, at [52]-[59], also determines that boarding houses represent a species of development prone to increased noise generation and that common rooms and common open spaces are a natural focus for such noise.
7. The Respondent directed the Court to the matter of Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247 where, at [50], Pearson C refers to an earlier planning planning principle developed to consider the suitability of a plan of management. This planning principle establishes an eight point test and it is submitted by the Respondent that the Plan of Management in this matter fails to meet a number of these tests.
8. Specifically, the Respondent submits that the proposed Plan of Management requires "…people to act in a manner that would be unlikely or unreasonable in the circumstances of the case…" and similarly, requires "…absolute compliance to achieve an acceptable outcome…"
9. Finally, the Respondent submits that with a maximum resident population of 100 people, self-regulation is unlikely to work. And that mechanisms for enforcement - a primary concern of the Respondent - place an onerous and unreasonable burden upon the boarding house manager to monitor capacity and hours of operation.
10. On the question of acoustic privacy, I find that the final amended Plan of Management, in concert with agreed conditions of consent, together represent an appropriate basis on which to mitigate against acoustic impacts.
11. In forming this view, I accept that the proposal includes 50 self-contained double boarding rooms, 41 of which have private open space in the form of balconies. This is likely to reduce the total demand for the common open space amongst residents.
12. Beyond this, it is agreed between the parties and their experts that an acceptable level of acoustic privacy will be achieved if outdoor congregation is limited to a maximum number of 20 people with a 10pm curfew. I am satisfied that the Plan of Management is adequate in setting out processes and mechanisms whereby this is capable of being achieved.
13. I further note that the agreed conditions of consent (Conditions 101-117) require for a range of further mechanisms, including a process for responding to noise complaints. Other aspects of these conditions of consent include: 1. Ensuring all residents commit to comply with a set of "house rules" which are not to be varied without the approval of the Respondent. 2. Prohibiting parties on the premises at all times. 3. The maintenance of a complaints and incident register. 4. A review process to regularly update the Plan of Management to the approval of the Respondent.
14. On the question of visual privacy between the existing dwellings at 18 Prince Street and a number of the proposed boarding rooms at levels two and three, I am satisfied that the balcony treatment included in the Revision E plans is an appropriate and effective measure to minimise direct cross viewing between properties.
15. In their oral evidence, Mr Turrisi and Mr Kosnetter were in agreement that this issue was capable of resolution (primarily since the balconies at 18 Prince Street each benefit from a dual aspect to the north and west), disagreeing only on the detailed form of privacy measures. I find that the proposed balconies with integrated planter boxes is an appropriate and balanced outcome maintaining reasonable privacy and amenity for both properties.
16. Collectively, I am satisfied these points resolve Contention 6.

Insufficient information

1. I turn finally to Contention 7, which raises concerns that insufficient information exists to assess the Application.
2. A number of the detailed particulars accompanying Contention 7 were resolved during the joint conferencing process, and at pp 23-24 of the joint report the experts limit any remaining disagreement to two points regarding the remediation of contamination and further shortcomings identified with the Plan of Management.
3. At the commencement of the hearing, the Applicant tendered a Remediation Action Plan (forming Exhibit U in these proceedings), and in opening submissions the Court heard this report was sufficient to fulfil the requirements of SEPP 55. The Respondent did not otherwise oppose these submissions and I am satisfied the Remediation Action Plan appropriately addresses the requirements of SEPP 55.
4. Similarly, at the commencement of the hearing, the Applicant tendered a Plan of Management (Exhibit R). Although this Plan of Management was subsequently amended to address Contention 6 and tendered on the second day of the hearing as Exhibit X, it was submitted by the Applicant that Exhibit R includes sufficient information regarding the operation of the proposed car stackers.
5. Again, the Respondent did not otherwise oppose this submission and the experts provided oral evidence to the same effect.
6. Consequently, I am satisfied these points resolve Contention 7.

Other jurisdictional considerations

1. Having found that the final amended proposal satisfactorily resolves the contentions, I turn to any remaining jurisdictional considerations that must be addressed prior to the grant of consent.
2. Firstly, I am satisfied the Application meets the objectives of the R3 Medium Density Residential zone - specifically "to protect the amenity of residents" - as required by the RLEP. My reasons are elaborated upon earlier in this judgment.
3. Secondly, pursuant to cl 4.3 - Height of buildings - of the RLEP, I accept the Application, as amended, exceeds the principal development standard for maximum height of building of 12m attributable to a section of the lift overrun, located towards the centre of the site.
4. Clause 4.6(4) of the RLEP requires the consent authority to be satisfied the Applicant's written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
5. As required by cl 4.6 of the RLEP, the Applicant has provided a written request (forming Exhibit N in these proceedings) seeking to vary the height of building development standard. The written request seeks to demonstrate the objectives of the height of building development standard are achieved notwithstanding the exceedance of the standard. The written request also sets out environmental planning grounds to justify the exceedance of the standard.
6. The Court received oral evidence from the experts agreeing that the basis of the cl 4.6 written request was well-founded. I accept this evidence and determine to uphold the Applicant's cl 4.6 request.
7. Thirdly, as addressed earlier in this judgment, I am satisfied the requirements of cl 6.10 - Essential services - of the RLEP have been met by the Application.
8. Fourthly, for reasons set out earlier in this judgment, I am satisfied that the Applicant's Remediation Action Plan fulfils the requirements of cl 7.1 of SEPP 55.
9. Finally, I am satisfied that the Applicant has provided a BASIX certificate (tendered as Exhibit Q in these proceedings) necessary to fulfil the requirements of SEPP BASIX.
10. Consequently, I am satisfied that the Court has power to grant consent, and there are no remaining jurisdictional obstacles to doing so.
11. At the conclusion of the hearing, I directed the parties as follows: 1. The Applicant is directed to further amend the Plan of Management and file with the Court by 3 December 2021. 2. The Applicant is directed to provide evidence that lodgement of the amended Application has been effected on the NSW Planning Portal and file with the Court by 3 December 2021. 3. The parties are directed to settle the draft Conditions of Consent and file with the Court by 3 December 2021.
12. The Court notes that: 1. The further amended Plan of Management, agreed between the parties, was filed with the Court on 18 January 2022. 2. The Applicant has provided evidence to demonstrate the amended Development Application was uploaded to the NSW Planning Portal on 23 November 2021. 3. Agreed Conditions of Consent were filed with the Court on 7 December 2021.
13. Accordingly, pursuant to s 39 of the LEC Act, I now move to uphold the appeal.

Orders

1. The Court orders that: 1. The Court, under s 39(2) of the Land and Environment Court Act 1979, and exercising the function of Randwick City Council as the relevant consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending Development Application DA 220/2021 to reflect the architectural plans which form Exhibit Y in these proceedings. 2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Application, in the agreed amount of $4,750 within 30 days of the date of these orders. 3. The Applicant's written request pursuant to clause 4.6 of the Randwick Local Environmental Plan 2012, seeking a variation to the development standard for height of building, is upheld. 4. The appeal is upheld. 5. Consent is granted to Development Application No. DA 220/2021 for the demolition of three existing buildings and associated structures, and the construction of a four-storey boarding house development at 19-23 Mulwarree Avenue, Randwick, subject to the conditions contained in Annexure A. 6. The exhibits, other than 2, 3, N and Y, are returned.

Acting Commissioner of the Court Annexure A (490109, pdf) Architectural Plans (37047379, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2022